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United States v. Davis

United States District Court, S.D. Texas, Houston Division

May 7, 2019

UNITED STATES OF AMERICA
v.
ROBERT DAVIS

          MEMORANDUM OPINION AND ORDER

          SIM LAKE, UNITED STATES DISTRICT JUDGE

         The defendant, Robert Davis, has filed Petitioner's Motion for Addendum to Previously Filed § 2255, seeking relief from his federal sentence ("Petitioner's Motion") (Docket Entry No. 141). The government has responded with United States' Motion to Dismiss Davis' "Motion for Addendum to Previously Filed § 2255" ("Government's Motion") (Docket Entry No. 145), to which Davis has filed Petitioner's Response to the United States' Motion to Dismiss Petitioner's Addendum to § 2255 Motion ("Petitioner's Response") (Docket Entry No. 151). The court has carefully reviewed all submissions and pertinent matters in this criminal case. Based on this review, the court's clear recollection of the relevant proceedings, and the application of governing legal authorities, Petitioner's Motion will be denied and the Government's Motion will be granted for the reasons explained below.

         I. Background

         On March 21, 2001, Davis entered a guilty plea to count one of an indictment charging him with aiding and abetting unlawful possession with intent to distribute a controlled substance, namely 50 grams or more of methamphetamine.[1] The Presentence Report ("PSR") prepared by the Probation Office determined that Davis was subject to an enhanced sentence under the career-offender guideline, U.S.S.G. § 4B1.1, because he had at least two prior felony controlled substance convictions.[2] In a judgment entered on July 13, 2001, the court sentenced Davis to serve 188 months' imprisonment, followed by a five-year term of supervised release.[3] Davis did not appeal.

         On May 20, 2002, Davis filed a Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody ("Defendant's First 2255 Motion").[4] He argued that his trial counsel was ineffective for failing to object to the calculation of his sentence.[5] The court denied Defendant's First 2255 Motion, finding that he waived collateral review under the terms of his Plea Agreement with the government.[6] Alternatively, the court found that Davis was properly sentenced and failed to show that he was denied effective assistance of counsel.[7] On April 21, 2003, the Fifth Circuit denied Davis a certificate of appealability from that decision.[8]

         On April 19, 2016, Davis filed Petitioner's Motion for Sentence Reduction and/or Modification of Sentence Pursuant to Title 28 U.S.C. § 2255(h) Motion to Vacate, Set Aside, or Correct a Sentence ad the Savings Clause of § 2255(f)(3) Based in Part on a New and Intervening Change of Law Johnson v. United States, 135 S.Ct. 2251 (June 26, 2015) ("Petitioner's Second 2255 Motion").[9]The court denied relief, finding that Petitioner was not entitled to benefit from the decision in Johnson and dismissing Petitioner's Second 2255 Motion as successive.[10] Davis' appeal from that decision was dismissed as untimely.[11]

         Davis has now filed Petitioner's Motion, which seeks to supplement his previously filed application under § 2255 by adding new claims under two recent decisions that "may affect" the calculation of his sentence: United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016); and Mathis v. United States, 136 S.Ct. 2243 (2016).[12] Noting that Davis collaterally attacks the sentence by advancing new substantive claims for relief, the government moves to dismiss Petitioner's Motion as an unauthorized successive application under 28 U.S.C. § 2255.[13] The government argues in the alternative that Davis is not entitled to relief under either of the cases listed in Petitioner's Motion.[14] Davis, who insists that Petitioner's Motion is governed by Rule 60(b) of the Federal Rules of Civil Procedure, maintains that he is entitled to relief from his sentence under Hinkle and Mathis.[15]

         II. Discussion

         A. Petitioner's Motion is a Successive Application Under § 2255

         Under Rule 60(b) of the Federal Rules of Civil Procedure a district court "may relieve a party . . . from a final judgment, order, or proceeding for the following reasons:

         (1) mistake, inadvertence, surprise, or excusable neglect;

         (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

         (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, ...


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